Reaves v. Secretary, Florida Department of Corrections

Appeal
from the United States District Court for the Southern
District of Florida D.C. Docket No. 2:10-cv-14046-DMM

Before
ED CARNES, Chief Judge, TJOFLAT and MARCUS, Circuit Judges.

ED
CARNES, Chief Judge:

William
Reaves, a Florida prisoner who has been sentenced to death
for the murder of a police officer, sought in the Florida
courts habeas relief from his conviction and sentence. When
he appealed the summary denial of one of his state
post-conviction motions, the Florida Supreme Court held that
one claim was moot and remanded another claim for an
evidentiary hearing. It affirmed on the merits the denial of
all of the other claims that Reaves had appealed, including a
claim that trial counsel had rendered ineffective assistance
at the penalty stage by not developing and presenting certain
mitigating circumstances evidence. Reaves v. State,
826 So.2d 932, 941-44 (Fla. 2002). It also affirmed the state
trial court's rejection of the penalty stage
ineffectiveness claim because "the proposed mitigation
evidence was either irrelevant, cumulative of evidence
already presented at sentencing, or would not have affected
the balance of aggravating and mitigating
circumstances." See Reaves v. Sec'y, Fla.
Dep't of Corr., 717 F.3d 886, 893 (11th Cir. 2013)
(explaining that was the basis of the Florida Supreme
Court's rejection of the claim).

The one
claim that was not finally disposed of by the Florida Supreme
Court's 2002 decision was a guilt stage ineffective
assistance claim involving the failure of trial counsel to
pursue a voluntary intoxication defense. Reaves, 826
So.2d at 937-39, 944. The court remanded the case to the
trial court for it to conduct an evidentiary hearing on that
guilt stage claim. Id. at 944; see Reaves,
717 F.3d at 893-94 (explaining that the Florida Supreme Court
"conclude[d] that an evidentiary hearing was needed to
resolve Reaves' claim that counsel was ineffective in
failing to present a voluntary intoxication defense during
the guilt phase of the trial, and it remanded the case for
that purpose").

At the
evidentiary hearing in the state trial court on remand,
Reaves presented evidence that was relevant to the guilt
stage ineffectiveness claim involving the voluntary
intoxication defense, which was the reason the case was
there. He argued to the state trial court that in view of the
evidence that he had presented on that claim at the
evidentiary hearing he was entitled to relief from the murder
conviction. Even though some of the evidence that he
presented in support of that guilt stage claim was also
relevant to the penalty stage ineffective assistance claim
about mitigating circumstances, Reaves did not attempt to
re-assert that penalty stage claim during the remand
proceedings, nor did he argue that it or any other claim in
his Rule 3.850 motion entitled him to relief from his
sentence. (Of course, having his conviction set aside on the
guilt stage claim he pursued would automatically overturn his
death sentence.)

After
the evidentiary hearing on remand, the state trial court
again ruled that Reaves was not entitled to relief on his
guilt stage ineffective assistance claim relating to the
voluntary intoxication defense and reiterated its denial of
his Rule 3.850 motion.[1] The trial court on remand did not revisit
the penalty stage ineffective assistance of counsel claim
involving mitigating circumstances nor mention that claim or
any sentence stage claim. Reaves appealed again.

In his
second, or post-remand, appeal from the denial of state
collateral relief, Reaves did not re-assert or re-argue the
penalty stage ineffective assistance claim that the Florida
Supreme Court had rejected on the merits in the first appeal.
Instead, as he had in the remand proceeding in the trial
court, the only claim he asserted and argued in the state
supreme court was the guilt stage ineffective assistance
claim involving the voluntary intoxication defense. That was
the only claim that court had not rejected on the merits or
as moot in his first appeal from the denial of state
collateral relief. And in the second appeal that guilt stage
ineffectiveness claim was the only one the Florida Supreme
Court considered. See Reaves, 942 So.2d 874 (Fla.
2006). The court did not take it upon itself to resurrect and
reconsider any claims that it had decided in the first
appeal, including the penalty stage ineffectiveness claim.

After
the Florida Supreme Court rejected Reaves' appeal from
the denial of his guilt stage ineffective assistance claim on
remand, he filed in federal district court a 28 U.S.C. §
2254 petition for writ of habeas corpus. He raised 25 claims
in his petition, including the penalty stage ineffectiveness
claim involving mitigating circumstances. The district court
did not grant relief on that claim but instead granted relief
on a claim that was not one of the 25 claims that Reaves had
raised in his federal habeas petition or otherwise in the
proceeding. Not only that, but in granting relief the
district court relied on evidence that had not even been
before the Florida Supreme Court in the first appeal from the
denial of state collateral relief. We reverse.

I.
FACTS AND PROCEDURAL HISTORY

We have
recounted the facts underlying Reaves' conviction in
considerable detail before. See Reaves, 717 F.3d at
889-90. So we will assume familiarity with that recounting
and not repeat it in all of its detail here. Early in the
morning on September 23, 1986, Reaves tried to call a taxi to
pick him up at a convenience store. Id. at 889. When
the taxi did not show up quickly enough he dialed 911, but he
hung up before speaking to the operator. Id. In
response to the hang-up call Deputy Richard Raczkoski was
dispatched to the convenience store, where he helped Reaves
contact a taxi. Id. While they waited for the taxi
to arrive, a .38 caliber pistol fell out of Reaves'
pants, and a brief struggle ensued as Deputy Raczkoski tried
to stop Reaves from grabbing the pistol. Id. Reaves
got ahold of the pistol and, after Deputy Raczkoski turned to
run, shot the deputy four times in the back. Id. He
discharged the pistol a total of seven times, with each shot
requiring a separate pull of the trigger. Id.

Reaves
later told a friend that Deputy Raczkoski had attempted to
draw his own weapon and that he had pointed his gun in the
deputy's face and warned him: "I wouldn't do
that if I were you." Id. at 889-90. Reaves also
told his friend that when the deputy pleaded for his life, he
responded: "One of us got to go, me or you."
Id. at 890. In a voluntary confession to the police,
Reaves said that he "couldn't let that officer get
that gun" because he believed that he was facing "a
mandatory three years" for being a felon in possession
of a firearm. Id.

A.
Reaves' State Court Proceedings

1.
Criminal Trials and Appeals

In 1987
Reaves was tried, convicted, and sentenced to death for
premeditated first degree murder. Id. The Florida
Supreme Court reversed his conviction and remanded for a new
trial on a ground not relevant to this appeal. Reaves v.
State, 574 So.2d 105, 107-08 (Fla. 1991). Reaves was
retried in 1992. Reaves v. State, 639 So.2d 1, 3 n.1
(Fla. 1994). At trial counsel's request the state trial
court reappointed Dr. William Weitz, a clinical psychologist,
as a mental health expert for the defense. Reaves,
717 F.3d at 891. Dr. Weitz had examined Reaves before his
first trial in 1987. Id. He diagnosed Reaves, an
African American veteran of the Vietnam War, with antisocial
personality disorder, polysubstance abuse, and a disorder
called Vietnam Syndrome, which Dr. Weitz defined as a
"sub-clinical" variety of post-traumatic stress
disorder (PTSD), id., involving a change in behavior
occurring because of combat exposure. Trial counsel's
strategy was to present a defense of excusable homicide using
that mental health evidence, but the trial court found that
Dr. Weitz's testimony was inadmissible and barred it from
the guilt stage of the trial. Id. at 891-92.
Nonetheless, trial counsel continued to focus largely on the
defense of excusable homicide. See id. at 892. The
jury, unconvinced, found Reaves guilty of premeditated first
degree murder. See id.

At the
penalty phase of the trial, Reaves presented eight witnesses
who testified about his childhood and his military service in
Vietnam. Fran Ross, an attorney who had grown up with Reaves,
testified that as a child Reaves had been helpful and
well-liked in the community. Reverend Leon Young, the pastor
at Reaves' childhood church, testified that Reaves had
been "a good Bible student, " and Young had thought
that Reaves might become a minister. Similarly, Otis Cobbs,
who lived in the same neighborhood as Reaves, testified that
Reaves had been "very respectable and very mannerful and
a very energetic young man" who had been a model
student. Charlie Jones, who was a few years older than Reaves
and grew up with him, testified that Reaves had been "a
fun-loving happy-go-lucky type fella." And Ann
Covington, Reaves' sister, testified that before joining
the army Reaves had been very gentle, caring, and obedient,
and a devout Christian.

Ross,
Jones, and Covington all testified that Reaves was different
after he returned from Vietnam. Ross and Jones testified that
it was apparent that Reaves had started to use drugs.
Covington testified that after his experiences in the war
Reaves had become unable to participate in family dinners,
was anxious and tense, and could not be approached without
giving him warning.

Hector
Caban and William Wade, soldiers who served with Reaves in
Vietnam, also testified. Reaves had arrived in Vietnam in
November 1969. They told the jury how, shortly after his
arrival, their squad was involved in a "U-shaped ambush,
" in which the enemy attacked them from three sides. Two
of the men in Reaves' squad were killed in that ambush,
and another was seriously injured. Caban, who served in the
same squad as Reaves, described for the jury other actions
that the squad was involved in during the ten months that he
and Reaves were together in Vietnam. He estimated that he was
involved in six to eight fire fights, and said that Reaves
was involved "[m]ost of the time."

Although
his testimony had been barred from the guilt phase of the
trial, the state trial court permitted mental health expert
Dr. Weitz to testify for Reaves at the penalty stage. The
court qualified him as an expert in general psychology,
clinical psychology, military psychology, Vietnam Syndrome,
and "post-traumatic stress disorders." Dr. Weitz
testified that he had diagnosed Reaves with antisocial
personality disorder, polysubstance abuse, and Vietnam
Syndrome, a term he defined to mean "a series of
psychological and behavioral reactions of veterans as they
were returning from the combat service in Vietnam." He
explained that Vietnam Syndrome was characterized by
alienation, depression, rage, and increased use of alcohol
and drugs. And he gave his opinion that Reaves' Vietnam
Syndrome "impacted on the events of that evening"
in the following ways, as he listed them:

One: Because of use of cocaine and other substances on the
night and the morning of that event, [Reaves'] judgment
and perception were already impaired.

Secondly: Because of perception at the time of the event of a
situation out of control, intense stress and pressure -
"panic" as he describes - panic on both parties,
heightened fear and anxiety, the fear response is prevalent.

The reaction to - the "survivor" reaction of
perceiving his own life would be paramount. I believe, then,
that the reaction of Mr. Reaves, the quickness of response,
the sensation of fear, the recognition that things were
panicked, uncontrolled and becoming unpredictable, that he
sensed the danger to his own life, and his behavior was
influenced by that perception.

Dr.
Weitz also explained that he diagnosed Reaves with Vietnam
Syndrome instead of PTSD because Reaves did not present all
of the criteria required for a PTSD diagnosis. According to
Dr. Weitz, Reaves had not, for example, reported flashbacks
or bad dreams, which are criteria for a formal diagnosis of
PTSD.

In
rebuttal the State called Robert Ressler, a retired FBI
criminologist and veteran (although not of the Vietnam War)
to testify as an expert in military records. Ressler
testified that Reaves had been honorably discharged and had
received a number of medals and awards, including the Combat
Infantryman's Badge, which is awarded for infantrymen
assigned to a combat unit. But he also said that those medals
and awards "were rather unremarkable and very routine
for a person performing in Vietnam for a period of . . . one
year." Ressler characterized Reaves' honorable
discharge as a product of the wartime environment. He was of
the view that because Reaves had been court-martialed for
theft, "[c]hances are" that in peacetime he would
not have been honorably discharged.

The
State also called Lieutenant Colonel Joseph Cinquino, who had
been a platoon leader in Vietnam, and who testified that he
had never seen any soldiers suffering from PTSD. Finally, the
State called Dr. McKinley Cheshire, an expert in psychiatry,
who testified that Vietnam Syndrome was not included in the
then-current Third Edition-Revised of the Diagnostic and
Statistical Manual of Mental Disorders. Based on his review
of the documents relating to Reaves, Dr. Cheshire was of the
opinion that he "was really not suffering from a
psychiatric illness, " but instead Deputy Raczkoski
"was executed by a drug dealer to cover up the
possibility of [Reaves'] going back to jail, " and
in doing that Reaves "was motivated to be selfish, to
protect himself, and to do away with the witnesses."

By a
vote of ten to two, the jury recommended a death sentence.
Reaves, 717 F.3d at 892. The trial judge found three
aggravating circumstances, no statutory mitigating
circumstances, and three nonstatutory mitigating
circumstances. Reaves, 639 So.2d at 3. He concluded
that the aggravating circumstances outweighed the mitigating
circumstances, and sentenced Reaves to death. See
id. The Florida Supreme Court rejected the trial
court's finding with respect to one of the three
aggravating circumstances -- that the murder was especially
heinous, atrocious or cruel -- but it affirmed Reaves'
conviction and also his sentence.[2]Id. at 6.

2.
Initial State Post-Conviction Proceedings

Reaves
then began pursuing collateral attacks on his conviction and
sentence. In his first Florida Rule of Criminal Procedure
3.850 motion he raised 27 claims, including ineffective
assistance of counsel at the guilt and penalty phases of his
trial. Reaves contended that his counsel was ineffective at
the guilt stage for, among other things, failing to
investigate and present a voluntary intoxication defense
based on the combination of his mental health and substance
abuse problems. He also claimed that in violation of Ake
v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985), Dr.
Weitz had not provided adequate mental health assistance to
aid his defense.

In
addition, Reaves claimed that trial counsel had rendered
ineffective assistance at the penalty stage. He asserted that
counsel had been ineffective because he failed to: seek the
assistance of experts in addictionology, psychopharmacology,
neuropsychology, and psychiatry; explain to the jury how his
substance abuse in conjunction with his mental health
problems related to the murder; investigate his military
service in Vietnam; provide Dr. Weitz with information
relating to his military service and mental state; object to
Ressler's qualification as an expert in military records;
and "object to the introduction of prejudicial and
inflammatory testimony." Finally, Reaves claimed that
the cumulative effect of the "number and types of errors
involved in his trial, when considered as a whole,
resulted in the unreliable conviction and sentence."

The
state trial court held a hearing, pursuant to Huff v.
State, 622 So.2d 982 (Fla. 1993), to determine whether
any of the claims Reaves had raised in his Rule 3.850 motion
required an evidentiary hearing. At the hearing Reaves argued
that trial counsel should have hired a neuropsychologist, a
psychologist, and an addictionologist. He stated that one of
the experts he could proffer was "a black male" who
would testify that Reaves had PTSD and did not have
antisocial personality disorder. He indicated that an unnamed
neuropsychologist would testify about unspecified
non-statutory mitigators. He also said that an unnamed
psychologist would testify that Reaves had PTSD, about
"statutory mitigators as well as a host of non-statutory
mitigators, " and would "provide specific testing
results with five different tests that have to do with
indication of PTSD that were available."

The
state trial court denied Reaves' Rule 3.850 motion
without an evidentiary hearing. With respect to the penalty
phase ineffective assistance claim, the trial court found
that Reaves' claim that trial counsel should have hired
additional mental health experts was conclusory and refuted
by the record, and that the "additional evidence
relating to Reaves' enlistment in the military, his
service in Vietnam, . . . and his addiction to heroin . . . .
would have been either irrelevant or cumulative."

In 2002
the Florida Supreme Court affirmed in part and reversed in
part the state trial court's judgment in the Rule 3.850
proceeding. Reaves, 826 So.2d at 944. The part of
the judgment that it reversed was the trial court's
summary denial of the Reaves' guilt stage ineffective
assistance claim relating to counsel's failure to pursue
a voluntary intoxication defense; it remanded that claim for
an evidentiary hearing. Id. at 938-39, 944. It
dismissed as moot the cumulative error claim in light of the
remand, and it "affirm[ed] the trial court's denial
of Reaves' postconviction motion in all other
aspects." Id. The affirmance of the penalty
stage ineffective assistance claim was on the merits, with
the Florida Supreme Court specifically stating that it agreed
with the state trial court that the additional mitigating
evidence Reaves had alleged would have been irrelevant or
cumulative to that which trial counsel had presented about
Reaves' impoverished childhood, his drug addiction, and
the conditions of his service in Vietnam. Id. at
941.

3. The
Post-Remand State Proceedings

In
March 2003 the state trial court held a three-day evidentiary
hearing on Reaves' guilt phase ineffectiveness claim.
Reaves called as witnesses his trial counsel and six expert
witnesses: Dr. Weitz, Dr. Richard Dudley, Dr. Barry Crown,
Dr. Deborah Mash, Dr. Erwin Parson, and Dr. Thomas Hyde.
Because we described at length the testimony presented at the
2003 evidentiary hearing in our previous decision,
Reaves, 717 F.3d at 894-97, we will not describe it
in detail now. The takeaways are that Dr. Dudley testified
that Reaves suffered from polysubstance abuse and PTSD.
Id. at 895. Dr. Crown testified that Reaves suffered
from brain damage in a part of his brain associated with
understanding the long-term consequences of his behavior and
that the combination of Reaves' use of cocaine and brain
damage "would have resulted in a phenomenon called
'cocaine kindling, ' which causes a person to have
disrupted 'reasoning, judgment, particularly short-term
memory, ' and to become impulsive and paranoid."
Id. at 895-96. Dr. Mash testified that Reaves'
extensive cocaine abuse rendered him paranoid and delusional
at the time of the shooting and that cocaine use exacerbates
the symptoms of PTSD. Id. at 896. Dr. Parson
testified that at the time of the murder, Reaves was
suffering from PTSD and "dissociation, " with a
history of chronic substance abuse, all of which combined to
make him incapable of forming the specific intent to kill.
Id. at 896-97. And Dr. Hyde testified that Reaves
had a history of polysubstance abuse, depression, strong
elements of PTSD, and a head injury which, if the injury
occurred prior to the shooting, could have left him
"disinhibited, impulsive, and prone to rash behaviors in
combination with acute intoxication." Id. at
897.

In
rebuttal the State called Dr. Cheshire, who reiterated his
testimony from the penalty phase of the trial that Reaves
"knew what he was doing" and had made a conscious
decision to shoot the deputy in an attempt to avoid being
sent back to prison. Id. Among the materials he had
studied in reaching that opinion were ones showing that
Reaves had told the police that he shot the deputy because he
didn't want to go back to prison and told a friend that
when the deputy pleaded for his life, Reaves replied:
"One of us got to go, me or you." After the state
court evidentiary hearing, Reaves supplemented the record
with a 2003 finding by the Department of Veterans Affairs
that he was one hundred percent disabled due to PTSD relating
to his military service and entitled to benefits for that
reason.

The
state trial court again denied Reaves' Rule 3.850 motion,
finding that counsel did not perform deficiently at the guilt
stage. Reaves appealed that decision to the Florida Supreme
Court, where he argued that trial counsel rendered
ineffective assistance at the guilt stage by failing to
pursue a voluntary intoxication defense. He did not, however,
re-assert his penalty phase ineffectiveness claim or even
mention it. In 2006, the Florida Supreme Court affirmed the
state trial court's rejection of Reaves' guilt stage
...

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